Action by Mary Margaret Smith, by her guardian ad litem, against
the Chicago & Northwestern Railway Company, commenced November
3, 1943, to recover damages for injuries sustained on
May 17, 1943, while alighting from defendant's train
at the Milwaukee station.

The jury found defendant's conductor causally negligent
with respect to giving assistance to the plaintiff as she was
alighting from the train; found that plaintiff was not
negligent in any respect; and assessed her damages in
the sum of $4,500. On motions after verdict, the court
changed the answers by which the jury had found
the defendant's conductor causally negligent from
'Yes' to 'No,' and on October 9, 1944, entered judgment
dismissing the action upon the merits, with costs.
Plaintiff appeals.

MARTIN, Justice.

On May 17, 1943, plaintiff was a passenger on defendant's train
from Chicago to Milwaukee. In alighting from the train at its
Milwaukee station, she fell from the steps and was injured.
It is alleged that defendant's conductor in charge of said
train failed in his duty to plaintiff as a passenger and was
negligent in that he: (a) Failed to have a stool or other
contrivance at the foot of the steps to enable the plaintiff
to dismount in safety; and (b) neglected to assist plaintiff
in dismounting after he had proffered his help. During the
course of the trial plaintiff's counsel withdrew the allegation
of negligence for failure to have a footstool between the
lower step of the coach and the platform. Therefore, the
plaintiff's case rests entirely on the alleged failure
of the conductor to assist plaintiff while alighting from
the coach in which she was a passenger.

On the date in question plaintiff was about twenty years of age,
a high school graduate, in good health, weighed one hundred fifteen
pounds, was five feet five inches tall. She carried no luggage,
was carrying her purse under her right arm. The accident occurred
about 3 o'clock in the afternoon. There were four steps. The
bottom one was seventeen inches from the platform. Plaintiff
testified that the steps were dry and there was nothing on them
to trip or stumble over or on which to catch her foot; the
steps were nice, easy ones.

Plaintiff further testified:

'Q. When you got to the vestibule what did you do? A. I started
walking down the steps. And I was on the second from the bottom
step, and I noticed that the conductor reached out his right
hand to help me. And I let go of the railing with my left hand
and extended it to the conductor so that he could help me. And
intrusting my care in him I looked down at the steps to see where
I was going, and I fell and landed on the platform.'

She testified that she did not ask the conductor to help her;
that she did not say anything to the conductor and he did not
say anything to her. She was asked:

'Q. And there wasn't anything about your appearance that you know
of, that would lead the conductor to think that you needed any
help, was there? A. Certainly not.'

There was no contact between the conductor's hand and plaintiff's
hand or arm before she fell. In a signed statement given by the
plaintiff on May 25, 1943, relative to the accident, she said:

'I know the conductor stood at the foot of the steps, and stood
to my left side. I was on the second step from the top, when
this conductor reached up to take hold of my left arm. He never
got hold of my arm, and as he reached for my arm, I let go of
the hand railing and fell off the coach steps. I would say that
I fell from the second top step. * * * I had on a pair of white
sandals, with high heels. * * * As I slid down the steps I
caught both heels on the edge of the steps. * * * All I can
say about the cause of this fall is that it was caused
because I took my hand off the handrailing, and this was
done before the conductor took hold of my arm.'

The foregoing statement was offered and received in evidence.

The conductor testified that when the train pulled into the Milwaukee
station plaintiff and a girl companion were in the tap car; that
they came from the tap car into the vestibule of the first coach;
that he noticed plaintiff when she stepped down on the first
step; that in making this step the heel came off one of plaintiff's
shoes and threw her forward; that at the time he was on the platform
at the lower step, standing to the right of the steps as you
looked up — to plaintiff's left as she came down; that when
the heel came off of plaintiff's shoe and threw her forward he
grabbed her as she came down; that they both fell on the platform;
that after they had fallen he saw the heel of plaintiff's shoe
on the first step; that he picked it up, gave it to her, and
helped her into the depot. Plaintiff denied at the trial that
the heel had broken off her shoe. However, she admitted that
the heels of both shoes were loose.

It is elementary that when reasonable men may honestly draw from
the facts different Conclusions upon the ultimate question of
fact at issue, the determination of that question is for the
jury.
Chippewa Falls Hotel Co.
v. Employers Liability Assur. Corporation,
208 Wis. 86, 89, 241 N.W. 380.

Giving plaintiff's evidence the most favorable construction which
it will bear, does it support the jury's finding of negligence
on the part of defendant's conductor? An inference must be drawn
from established facts which logically supports the same.
Wm. Esser & Co. v. Industrial Comm.,
191 Wis. 473, 477, 211 N.W. 150.
Before there can be negligence there must be a breach
of duty owing by the person against whom the claim of
negligence is made; in the instant case, the defendant's
conductor. In
Gardner v. Chicago & M. Electric R. Co.,
164 Wis. 541, 544, 159 N.W. 1066, 1067,
the court said: 'Plaintiff was a woman about 46 years
of age, in good health, and burdened with only a light handbag
when she fell, and the car was standing still at a terminal station.
Under such circumstances no duty devolved upon defendants to
assist her in alighting.'

Plaintiff testified:

'Q. * * * You weren't going to lean on him until you got down
to the bottom step, were you? A. I expected to help myself,
but I expected some assistance from him.

'Q. That is, you mean from the bottom step to the platform, is
that what you mean? A. That is what I mean.'

In
Dorcey v. Milwaukee Electric Ry. & Light Co.,
186 Wis. 590, 593, 203 N.W. 327, 328,
the court said: 'Before the defendant charged can
be held guilty of fault, it must be pointed out what
duty, if any it owed, which it failed to perform. We are cited
to no case, and we know of no practice, which makes it the duty
of a street railway company to assist passengers in alighting
from its cars where they are in the possession of their full
senses, are intelligent, able-bodied, and under no disability.
There was nothing in the circumstances of this case to lead the
conductor, who was in the place designated for him, to suppose
that the plaintiff was in need of help in alighting from the
car. She was a strong, vigorous, able-bodied woman, and it was
quite apparent that her injuries, though painful and serious,
are the result of unavoidable accident.'

In 10 Am.Jur. 231, sec. 1384, the rule is stated as follows: 'The
mere fact that a passenger is a female does not, in the absence
of any special circumstances, impose on the carrier the duty
to assist her to alight, nor does it create any liability upon
its part for injuries sustained by such passenger in leaving
or boarding a car, where there is no negligence of the carrier
contributing thereto. The duty to assist a passenger
on or off a train may arise, however, in the case of a woman
traveling with heavy hand baggage.'

In 55 A.L.R. 389, in the Annotation as to the duty and liability
of carriers to assist passengers to board or alight from car
or train, it is stated that: 'The rule is universal that ordinarily
there is no duty resting on a carrier of passengers to assist
a passenger in boarding or alighting from its train or car.'
Citing cases from many jurisdictions, including
Gardner v. Chicago & M. E. R. Co.,
supra,
and
Dorcey v. Milwaukee E. R. & L. Co.,
supra.

Plaintiff argues that recovery may be had under the decisions
of this court in
McDermott v. Chicago & N.W. R. Co.,
82 Wis. 246, 251, 52 N.W. 85,
and
Werner v. Chicago & N.W. R. Co.,
105 Wis. 300, 81 N.W. 416.
In the
McDermott
case, 82 Wis. at page 251, 52 N.W.
at page 87 the court said: 'It is the duty of a
common carrier of passenger to provide and maintain safe alighting
places, and it must respond in damages to a passenger who, without
contributory fault on his part, is injured by a negligent failure
to perform this duty. It is the duty of the railway carrier
to make it safe for its passengers to leave its cars, and in
the case of female passengers, at least, they have a right to
expect aid or assistance from the brakeman or some other employe
of the company to assist them in alighting.'

In that case it appears that plaintiff was encumbered by quite
a number of packages or parcels, one of which was quite heavy.
She called for an employee of the company to assist her and he
took part of the parcels and placed them on the floor of the
station, then turned to render her further aid. But in the meantime
she had attempted to descend without awaiting the aid or assistance
then at hand. In so doing she had fallen and sustained the
injury for which she claimed damages. There was a verdict and judgment
for the plaintiff. The judgment was reversed and a new trial
ordered because the trial court erred in withdrawing from the
consideration of the jury the question of plaintiff's contributory
negligence in the manner it did by its instruction.

In the
Werner
Case the court said, 105 Wis. at page 305, 81 N.W. at page 418:
'The defendant, as a common carrier of passengers,
was certainly bound to provide a safe place for the plaintiff
to alight on reaching her destination, and, in view of her age
and condition, to render such reasonable assistance as to enable
her, if in the exercise of ordinary care on her part, to alight
from the train in safety.'
Citing the
McDermott
Case,
supra.

The facts in both cases are clearly distinguishable from the facts
in the instant case. Neither case is referred to in the later
cases of
Gardner v. Chicago & M. E. R. Co.supra,
and
Dorcey v. Milwaukee E. R. & L. Co.supra.
The law of the later cases is controlling and in
accord with the general rule that in the
absence of special circumstances, such as the passenger being
burdened with parcels, illness, or apparent infirmity, and even
though the passenger be a female, there is no duty to assist
the passenger in alighting from a train.

In the case at bar plaintiff testified that there was nothing
about her appearance that would lead the conductor to think that
she was in need of any help in alighting from the train. She
also testified that she did not expect any assistance until she
reached the bottom step. At one time she testified she fell from
the second from the top step, at another time she testified she
fell from the second from the bottom step. While she testified
that the conductor had extended his hand to assist her, she also
testified that she started to fall before the conductor
could take hold of her arm.

If the conductor did nothing as he saw plaintiff alighting and
before she started to fall, there would be no violation of
any duty he owed to her. Plaintiff makes much of the fact
that the conductor extended his hand upward, proffering
his assistance in alighting. Assuming this to be true,
the conductor would be required to use only ordinary care.
10 Am. Jur. 240, sec. 1404. Had the conductor taken hold of
plaintiff's arm before she started to fall, or if after extending
his hand to assist plaintiff in alighting he had withdrawn
the proffered assistance, we would have an entirely different
case. No such claim is made and there is no evidence
to sustain a finding of such facts. There is no evidence to
support the jury's finding of negligence on the part of
the conductor. The judgment must be affirmed.